R. v Wesley Date:, 2015 BCPC 57

Citation: R. v Wesley Date: 20150113 2015 BCPC 0057 File No: 22499-4-B Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES ROBERT WESLEY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Crown: D. Brennan Counsel for the Defendant: I. Lawson Place of Hearing: Hazelton , B.C. Date of Hearing: September 2, 2014 and January 7, 2015 Date of Judgment: January 13, 2015 Background

[1] This matter came on for trial on Sept 2nd, 2014. At the commencement of the trial the Crown tendered a certified copy of a probation order dated January 10th, 2013 (Exhibit A). The defence objected to it being entered as an exhibit in the trial on the basis thatthe Crown had not complied with s.28 of the Canada Evidence Act. [2] The Crown then tendered the original memorandum of disclosure with endorsement of acknowledgement of receipt by thedefence (Exhibit B). This document is the cover letter for disclosure given by the Crown to the defence.

The disclosure included an uncertified copy of the probation order dated January 10th, 2013. [3] The defence then tendered a copy of a letter to the Crown dated July 16th, 2014 requesting disclosure for the accused but refersto the wrong file number 23401-B-1 (Exhibit C). [4] Exhibit B contains seven highlighted notices.

The first notice reads: The Crown intends to produce and tender as evidence at the trial of this matter any business records, certificates, public documents,Motor Vehicle records, banking records, judicial documents, affidavits of service or government documents that are contained in thematerial that has been provided to you or that has been referenced to in the material provided to you. [5] The fourth notice of Exhibit B reads: If you have any questions about this disclosure memo or the material enclosed with it or if you require further information in order toproperly prepare your defence, please contact our office in writing, quoting the police file number or court file number, if any. [6] The defence sent a letter dated July 16th, 2014 which requested disclosure for the July 18th, 2014 court appearance on thecharge.

Its last paragraph reads: Please be advised that merely delivering the above disclosure to me will not constitute notice under the Canada Evidence Act that youintend to put any documents into evidence under that Act. If you so intend, you must give me proper notice of same together with a copyof the documents intended to be put into evidence. [7]

Section 28 of the Canada Evidence Act reads as follows:

(1) No copy of any book or other document shall be admitted in evidence under the authority of

section 23, 24, 25, 26, or 27 on any trial,unless the party intending to produce the copy has before the trial given to the party against whom it is intended to be producedreasonable notice of that intention. (2) the reasonableness of the notice referred to in subsection (1) shall be determined by the court, judge or other person presiding, but thenotice shall not in any case be less than seven days. The Law [8] The decision of R v Ayodeji-Emeri [2012] O.J. #6433 dealt with the admissibility of a recognizance and original information.

The Crown purported to give notice of intention to produce under the Canada Evidence Act. Service of the notice was proven but thewording of the notice was deficient as it did not specify the documents to be tendered.

Rather it referred to “the relevant information”with a particular offence date and a certified true copy of the relevant undertaking or recognizance. [9] The court adopted the test for reasonable notice laid out by the Alberta Court of Appeal in R v Good (1983) 1983 ABCA 141, 6 C.C.C. (3d) 105 as follows: The real test is that the notice must be reasonable in time and substance and must not be misleading, confusing or otherwise prejudicial. It must clearly and precisely bring home to the accused that the certificate may be used in relation to the charge arising from theincident.

No particular form of the notice is required. [10] The trial judge found on the facts that because the tendered information was for an offence date other than that specified in thenotice that there was not reasonable notice. [11] The trial judge also found that reference to the copy of the relevant undertaking or recognizance was reasonable notice andadmissible under s28 of the Canada Evidence Act. The trial judge then considered the admissibility of the information under theCommon Law. The court followed R v Tatomir (1989) (AB CA), 51 C.C.C. (3d) 321 (Alberta Court of Appeal). At

page 327 the court held that s28 of the Canada Evidence Act is in addition to and not in derogation of the Common Law. The courtconcluded at paragraph 46 that, “the certified copy of the recognizance is admissible for its truth as a necessary and reliable documentunder a Khan analysis.” [12] The

summary appeal judge found that the notice was not reasonable concerning the wrongly named information but that it wasreasonable concerning the recognizance. Later in the analysis the judge found that the information was admissible in any event as apublic document under the Common Law as distinct from the Canada Evidence Act. [13] The Tatomir decision referred to above admitted an exemplification as both original court documents and exemplifications areadmissible for the truth of their contents. However, the case considered an exemplification as a copy under the seal of the court holdingthe document.

In the case at hand the certified copy of the probation order is not verified by the seal of the court as no such seal exists. [14] The formalistic approach of Tatomir has been made more flexible in subsequent cases. Mr. Justice Romilly of the B.C.Supreme Court in R v Caplette [1993] B.C.J. #727 in reviewing sections 23 and 28 of the Canada Evidence Act applied the “principledapproach” introduced in Khan v College of Physicians and Surgeons of Ontario (1992) 76 C.C.C. (3d) O.C.A. Mr.

Justice Romillyconcluded that a certified copy of a driving prohibition which was unsigned by the accused was not admissible under s23 of the CanadaEvidence Act. However, he found that it was admissible as an exception to the hearsay rule because of its reliability and necessity. [15] Paragraph 38 of the Caplette decision reads: At any rate, I am satisfied that under the “flexible” definition of necessity as postulated by Lamer, C.J.C. in R v Smith (1992) (SCC), 75 C.C.C. (3d) 257 the requirement of high circumstantial guarantee of reliability has been met in this instance.

Thereis “a very high circumstantial guarantee of reliability” attached to these documents. That “high circumstantial guarantee of reliability”flowed from it being a photocopy. [16] This logic was adopted in a different situation by the Supreme Court of B.C. in R v West [2009] B.C.J #1737. In that case theCrown sought to rely on the defendant’s initial promise to appear and the record of proceedings both without affidavit or oral attestation.

The trial judge admitted the record of proceedings as a public document and further of his own motion called the court clerk “ex meromotu” to explain that record after the Crown had closed its case. On

summary appeal, Mr. Justice Brown held that “Court recordsinherently satisfied the requirements for reliability and admission as exceptions to the hearsay rule. [17] In the decision R v Dixon [2006] N.B.J. #232 the Crown attempted to introduce a certified copy of the probation order withouthaving served the accused with a certified copy of the probation order at least seven days before the trial. The Crown had served anotice which was found to be insufficient because of vagueness. However, the

Summary Appeal court held that because a copy of thesame probation order, although not yet certified, was served that the need for sufficient reasonable notice under s28 of the CanadaEvidence Act had been met. [18] In paragraph seventeen, the

Summary Appeal Judge found “the trial judge erred in finding that there is a requirement that acertified copy of the probation order shall be served on a respondent seven days before a trail. It is my finding that adequate orreasonable notice as required under s28 of the Canada Evidence Act had been provided to the respondent.” [19] In the case R v Kettle [2008] N.J. #152 the Provincial Court of Newfoundland and Labrador dealt with short service of the notice to produce a document under s28 of the Canada Evidence Act. The accused was served with the notice on January 5th, 2008.

The trial commenced January 7th, 2008. It was conceded by the defence that while the notice was insufficient, that a copy of the probationorder might be admissible under the principles laid out in R v Tatomir if the document was an exemplification. [20] However, the defence argued that exemplification required both a certified copy and that it bear the seal of the court.

The trialjudge disagreed and said, starting a paragraph eleven: In an age of photocopiers and computer record print-outs, it is unnecessary, in my view, for the clerk to compare the original and thecopy, word for word, before the copy can be certified. In R v Morgan [1995] N.J. #379 the Court of Appeal, referring to use of pre-printed forms, held that to require comparison of the pre-printed version of the forms was needlessly technical.

In short, I am satisfiedthat there is no difficulty in accepting the proffered document as an explication of the court record. [21] Conversely, the Manitoba Queen’s Bench in R v Shellenberg [2011] M.J. #324 at paragraph 29 held that a certified copy of aprobation order was not an exemplification because it was not under seal. However, the

summary appeal judge held at paragraph 31 thatthe Canada Evidence Act is not an exclusive code and that a certified copy of a probation order was admissible without notice as ajudicial record. The basis for that ruling was that at Common Law a judicial record was reliable and because its admission wasnecessary. Analysis [22] Based on the logic in R v Ayodeji-Emeni, the notice provided by the disclosure cover letter would be sufficiently clear,particularly when an uncertified copy of the probation order was included.

This would “bring home to the accused that the probationorder may be used in evidence”. [23] Accordingly, the requirement of reasonable notice under s28 of the Canada Evidence Act may have been met. However, therewas no evidence called by affidavit or viva voca in the voir dire. Accordingly, this court is not in a position to make a ruling on that

basis. [ 24 ] However, this court does conclude that the probation order is admissible under the Common Law under each variation of the principles laid out in the R v Capeletto, R v West, R v Dixon, R v Shellenberg and R v Ayodeji-Emeni decisions. [ 25 ] Finally, this court must consider whether the admission of the probation order is fair. Fairness of the notice is clearly the underlying principle in the R v Good test.

Similarly, the fairness of admitting the documents under the Common Law was canvassed in R v Capeletto . [ 26 ] In the case at hand, the accused has objected to the manner of notice from the Crown. It is clear that he was aware that the Crown intended to tender the probation order. Therefore, this court concludes as the accused was not taken by surprise and that the admission of the certified copy of the probation order (Exhibit

A) is fair. Decision [ 27 ] Exhibit A is admissible and shall be marked a full exhibit 1 on the trial. _________________________ W. F. M. Jackson Provincial Court Judge